Gerasimov v Allianz Australia Life Insurance Ltd; Gerasimov v Suncorp Life & Superannuation Ltd; Gerasimov v Onepath Life

Background and parties 2The Plaintiff, Mr Gerasimov, is the executor of what is said to be the estate of the late Mr Safronov. The three Defendants are different life insurance companies. 3In the period April to July 2007 Mr Safronov effected three life insurance policies, each in the sum of $400,000 with each Defendant insurer. 4On 23 October 2009 Mr Safronov made a will appointing the Plaintiff, Mr Gerasimov, as executor. Mr Safronov left Australia in October or November of 2009. Prior to that time he was living with Mr Gerasimov in Sydney. 5On 7 December 2009 Mr Safronov appointed Mr Zhirnoklev as his attorney. Mr Zhirnoklev, with whom Mr Safronov was apparently staying in Ukraine, reported Mr Safronov missing on 8 March 2010. Mr Safronov is said to have died on 10 March 2010. 6Mr Zhirnoklev attended a morgue in the Ukraine and identified a body as that of Mr Safronov. 7The Plaintiff is also a beneficiary under the will as is Mr Zhirnoklev. There were two other beneficiaries - said not to be known to the executor - and a residuary beneficiary. 8There was nothing in Mr Safronov's estate other than the life insurance policies totalling $1,200,000. 9Claims were made under each of the policies in late March 2010.

Proof of Death 10A Ukraine death certificate was issued in March 2010 stating that Mr Safronov died on 10 March 2010. The certificate - the original of which was produced - has affixed to it a seal said to be the seal of the relevant Ukrainian authority. 11A New South Wales death certificate was issued on 19 March 2011 based on the Ukraine death certificate. It is common ground that the New South Wales death certificate was only issued following the grant of the Ukraine death certificate. 12There were NSW Police inquiries into the death. The Defendants instructed an international detective/inspection agency named Centricity. A folder of documents (exhibit vd1) including reports from Centricity have been tendered on the application by the Defendants for non-disclosure - see below.

Issue and onus 13Mr Safronov's death is either disputed or not admitted by each of the Defendant insurers. They have each refused to pay on any of the life policies. 14The Amended Defence makes it clear that the Defendants alleged Mr Safronov is not dead or at least was not dead as at the time the applications were made for payment under the policies; further, that Mr Safronov, as the life insured, breached his duty of good faith and acted contrary to section 13 of the Insurance Contracts Act in that he made a claim when he is or was not deceased. It is further alleged that he either conceived of, or was a party to, a fraudulent scheme the purposes of pursuing a benefit under the policy - see below "Scheme". 15The Defendants concede that they bear a rebuttable presumption of death as raised by the filing of the NSW Death Certificate. It is also accepted that what is raised is essentially an allegation of, if not a criminal fraud, then certainly an allegation of a serious nature, invoking the Briginshaw v Briginshaw (1938) 60 CLR 336 standard of proof on the balance of probabilities.

Suspicions 16The basis of the Defendants' suspicions are set against the background of the facts, the chronology and the relationships outlined above. 17Originally a Ukrainian death certificate was obtained by the insurers which included photographs and measurements of the person said to be the deceased. 18The Defendant insurers were satisfied that the person shown the photographs was not the deceased; further, the person said to be in the photograph apparently taken in the morgue was of a different height and otherwise physically not identical to nor consistent with Mr Safronov. It is said, for example, that the person identified in the photo looked some 10 years older than Mr Safronov. That material is not before the court at this stage. 19In response to the production of that document by the insurers, the executor then served another copy of a report from the relevant Ukraine authority. That certificate contained photographs of a different person with different measurements and a different age. The Plaintiff alleges that that person was Mr Safronov. 20The documents are clearly in conflict. It is submitted that that certificate is still either defective or inconclusive in all the circumstances.

Supoenas 21Subpoenas upon the following have been issued by the Defendants: (1)NSW Registry of Births Deaths and Marriages (2)Department of Immigration and Citizenship (3)Southern Cross Protection Pty Ltd (4)Commonwealth Bank of Australia (5)St George Bank (6)ANZ Banking Group Limited (7)Citigroup Pty Limited (8)Telstra Corporation Limited (9)Vodaphone Hutchinson Pty Ltd (10)The Commissioner of Police 22Other than 9 and 10, those subpoenas have been answered. None of the entities objected to those subpoenas, either as to their width or date. 23The Plaintiff seeks to set aside some or all of the subpoenas effectively on the basis that the material produced is irrelevant. The Defendant seeks access to that material. 24The subpoenas relate to Mr Safronov's alleged existence, his employment, travel or communications and clearly seek details of addresses etc earlier maintained by him. They are in my view 'reasonably necessary' to the conduct of this litigation and are not purely speculative. 25I will grant access to the legal practitioners to the material produced on subpoena referred to above.

Scheme alleged 26Mr Cavanagh SC submits that the scheme involving the fraudulent claim on the insurers was either jointly or solely conducted by Mr Safronov. In response to arguments raised by Mr Bingham, Mr Cavanagh SC submits that he does not need to establish that the executor was a person involved in the scheme. The Defendants accept that what they will have to prove in the hearing is that the insured Mr Safronov was not dead at the date of the claim. The proof of the scheme alleged will rise or fall on that issue. He accepts that Mr Gerasimov may be acting entirely appropriately and innocently by submitting the claims on the insurers in accordance with the documentation provided to him. His instructions - including for example, the place of deposit of any of the proceeds of the claims - may be relayed to him by other persons. Of itself there is nothing suspicious about that. Executors, absent other considerations, would not normally have to verify the bona fides of the place for deposits, nor those instructions.

Particulars 27By letter dated June 2012 (JTM7) the Plaintiff seeks particulars of 12(b)(i) of the Amended Defence, namely, that Mr Safronov was not deceased and 12(b)(vi) that Mr Safronov conceived a fraudulent scheme to fabricate his death. 28That application is resisted on the basis that what is sought is in fact evidence rather than particulars. 29At all material times the Defendants have put the Plaintiff on notice of its case that Mr Safronov fabricated his death in order that a fraudulent claim subsequently be made under the various policies issued in respect of him. The essence of the fraud alleged will rise or fall on the case made out as to whether or not Mr Safronov is or was dead at the relevant time.

Scheme alleged 30In any event, Mr Cavanagh SC has confirmed that the details of the scheme on which the Defendants will rely at the hearing are as follows: (1)That Mr Safronov was not dead at any relevant time; (2)That he knew that those acting on his instructions or in concert with him would make a claim against each of the insurers based on that alleged death warranting and entitling payment under the respective policies; (3)That a person or persons with whom Mr Safronov was acting at all relevant times knew that the death had not occurred and he was not dead; and (4)The intent of the scheme was to defraud the insurers.

Non-disclosure application 31Mr Cavanagh SC resists inspection by the Plaintiff of the Centricity, and related, investigation documents. He submits that the Defendants should not be required to present information that they may have in their possession provided the Defendants can each satisfy the court in accordance with the UCPR 31.10 and the principles set out in Markus v Provincial Insurance Co Ltd (1983) 25 NSWCCR 1 as well as Halpin v Lumley General Insurance Ltd [2009] NSWCA 372; (2009) 78 NSWLR 265.

Procedure 32Mr Cavanagh SC proposes to tender the material on which privilege is sought on a confidential basis so the court can be satisfied that this claim is made on a sound and proper basis. It is submitted that such disclosure is not required here as good cause and in appropriate circumstances are demonstrated.

Authorities 33Counsel have referred me to the following authorities. For the Plaintiff: Johnston v Australia and New Zealand Banking Group Ltd; Johnston v Richardson [2003] NSWSC 454. For the Defendant: Halpin v Lumley General Insurance Ltd [2009] NSWSC 644; (2009) 258 ALR 588 Halpin v Lumley General Insurance Ltd [2009] NSWCA 372; (2009) 78 NSWLR 265 Markus v Provincial Insurance Co Ltd Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 428. 34In Boyes v Colins [2000] WASCA 344; (2000) 23 WAR 123 it was noted that exceptional circumstances are required to justify non-disclosure. 35The essence of what is required is that the applicant for privilege of the material which would otherwise need to be disclosed is entitled to maintain a forensic advantage to enable a fair trial. It must be shown that there is confidential information which can be and should be protected from inappropriate disclosure in the course of litigation particularly where the purpose is to maintain confidentiality the context of litigation. Mr Cavanagh SC also submits that, here, the Defendants are entitled to protect the forensic advantage that they have over the information they have obtained.

Consideration 36I have examined the folder of documents (exhibit VD 1) containing the affidavit of Melissa Louise Godfrey sworn on 9 August 2012 and the marked annexures. That includes a letter and report from Centricity dated 28 August 2010. Clearly any evidence sought to be led from that material at the hearing will be subject to the normal requirements to establish relevance. 37The folder of material is simply advanced at this stage to establish that there is a reasonable cause for the application and good reason to protect the forensic advantage the Defendants may have if the matter proceeds. 38Halpin & Ors v Lumley General Insurance Ltd [2009] NSWCA 372; (2009) 78 NSWLR 265 at [101], requires that the issues must be clearly defined and relevance established prior to any direction being made. 39Viewing the scope of the matter, the material submitted and the matters disclosed on the proceedings, it seems to be that the material sought may have a capacity to throw a light on the issues in the main case - namely -whether the death did not occur and whether Mr Safronov is or was still alive) and the secondary issue, namely, the existence of the scheme as set out above. The documents may also be necessary in the cross-examination of those concerned with the authenticity of the relevant certification. 40In my view, the material does not assist the Plaintiff's case. 41On the case pleaded to date, all the Plaintiff as executor will need to do in essence is to tender the relevant policies and the properly certified Death Certificate. The documents in the folder do not affect that entitlement. However, the documents in the folder demonstrate that the Defendants have actively investigated the matter and not just sat back to delay or defeat the claim. I see nothing at this stage to indicate that the Defendants have not fulfilled their duties under the Civil Procedure Act 2005 nor that they have unduly delayed the claim or the hearing. As I have said, the Defendants admit that the filing of a New South Wales death certificate on 19 March 2011 raises a rebuttable presumption against each of them. 42The factual background is as I have set out. As to the forensic advantage claimed, there is some history to the matter given that the two different death certificates issued by what is said to be the one Ukraine authority in a relatively short time period and appear to relate to two different individuals. How that could have occurred and what inferences may arise are matters for the trial. The NSW certificate will only be as good as the Ukraine certificate is found to be at the hearing. 43Whether the material in the folder will be sufficient to establish the matters the Defendants will be required to prove is a matter for the Court at the final hearing.

Documents and Objects Sought 44The Defendants also seek access to Mr Safronov's hard drive and to any documentation retained by the executor in relation to the claim as well as the Plaintiff's own hard drive. 45It is asserted that the hard drive of Mr Safronov is not in the possession of the executor. The Defendants seek specific verification of that by affidavit from the executor. It is not specifically covered in the present affidavit of discovery and may become relevant in subsequent proceedings. Whether Mr Gerasimov will have to give evidence in the final hearing and be exposed to cross-examination will doubtless be considered in the context of those proceedings. 46The other documents sought by the Defendants obviously include relevant financial documentation relating to - for example - addresses, financial information or bank accounts used by or maintained by Mr Safronov prior to his departure from Australia. 47It is submitted that access to the hard drive of the executor's own computer storage system is relevant to the issue of whether or not Mr Safronov is dead and whether, and if, he was alive, that fact is, or was, known to Mr Gerasimov as executor or possibly others who may have been involved. 48Clearly the Defendants want, for example, to examine the hard drive to ascertain if there are any email or similar items of correspondence with either Mr Safronov (if their suspicions are correct) or other persons who may know of either Mr Safronov's existence or whereabouts after what is said to be the date of death. The Defendants also seek correspondence with relevant financial institutions to which or with which those involved have access. Clearly, the suggested 'money-trail' will be one of the matters for investigation. 49That is resisted on the basis namely that what is in Mr Gerasimov's office or personal computer is not relevant to these proceedings.

Privacy of Executor 50In my view the limited class of documents may be relevant on the fact in issue. However, I have considerable concerns about Mr Gerasimov's entitlement to privacy which I have raised a number of times during the hearing. There is increasingly a blithe disregard by some computer analysts for the rights of electronic privacy of others which should not be encouraged by court inspection orders. Documents produced are capable of immediate and widespread dissemination. 51A person is entitled to act as an executor without being apprehensive that all his personal documentation and records will be trawled through or subject to electronic analysis, investigation or recording. It may be oppressive, for example, for a solicitor's firm where a partner is acting as an executor to have to provide discovery to all its records without being limited (at least) as to time, date and the particular client. 52However, the attitude of the Plaintiff's legal representatives, as I understand it, is that discovery relevant to documents retained by the executor concerning Mr Safronov for the specified period has been totally refused. 53The documents and computer records accessed must be carefully specified. 54Any search of Mr Gerasimov's computer or other records must be limited to documents or the computer records of files only relevant to these proceedings having or bearing, for example, Mr Safronov's name or containing details of accounts which he had in existence at or prior to his departure from Australia. 55I am informed that there is a search programme which can include reference to deleted files on a hard drive. I would need to be satisfied that the use of any such programmes are not capable of damaging Mr Gerasimov's records or systems. 56Mr Gerasimov is entitled to be present during any examination and that proper indemnities are given, regardless of the outcome of any search, as to the integrity and privacy of Mr Gerasimov's private records and the safety of his computer equipment. 57I will hear counsel on the terms of such orders but I would emphasise that the rights of a third party - as Mr Gerasimov may well be relevantly in relation to this aspect of the matter - need to be able to be shown to be protected before any orders will be made. A draft of orders has been circulated and amended. The final orders made reflect these matters.

Determination 58I will grant access to the parties to the documents produced on subpoena. 59In my view the request for particulars is not in fact a proper request; it is rather a request for evidence. Nevertheless I note that the Defendants agree to be bound by the details of the scheme as outlined by Mr Cavanagh SC. 60The Plaintiff should verify on affidavit that it does not have in its possession the hard drive of Mr Safronov. 61The Plaintiff should make available the hard drive of the Plaintiff for examination provided his proper interests as to privacy are protected. That will clearly include any examination of the hard drive for records of deleted documents and files pertaining only to Mr Safronov or his estate or dealings with him. What is sought will need to be clearly specified in advance. 62I will only make orders for discovery and examination of Mr Gerasimov' hard drive again subject to the protection of Mr Gerasimov's interest of privacy. Further, that the discovery and inspection should only be made available on the basis of a proper indemnity being provided to the Plaintiff in the event of any damage to the hard drive as a result of that inspection. 63I order that the hearing of the proceedings be consolidated. 64Evidence in the proceedings given by each of the Defendants will be evidence in the totality of the proceedings 65The Defendants are not required to make disclosure of the folder of documents in exhibit VD 1.

Costs 66The outcome of the litigation will depend on the outcome of the crucial issue, namely, whether it can be established by the Defendants that Mr Safronov was not in fact dead or was not alive the relevant times in accordance with the rebuttable presumption raised by the issue of a New South Wales death certificate. These proceedings were primarily concerned with the preparation of the pleadings for the ultimate hearing and the narrowing of issues. 67Costs should be costs in the cause. That is not opposed by either side.

Orders (1)I direct that proceedings number 2011/301247, 2011/301/304114 and 2011/292705 be case managed and heard together. (2)I order the Plaintiff to produce for inspection and copying in these proceedings and in proceedings numbered 2011/292705 and 2011/304114 all computer hard drives in his possession, custody or control used by him during the period from November 2009 to date to a computer expert to be nominated by the Defendants. (3)I direct the said computer expert to: (a)conduct such non-destructive examination of the said hard drive or hard drives as the expert considers to be reasonably necessary to identify the existence of any documents falling within the categories set out in the attached Schedule; (b)make electronic copies of any documents falling within the categories set out in the 'attached Schedule ("the copies"); (c)provide the copies to the legal representatives for the parties; (d)return the original hard drive or hard drives to the Plaintiff's solicitors (4)The expert's costs are to be paid by the Defendants regardless of the outcome of the proceedings. (5)I direct the said computer expert (and any accredited translator retained to interpret any documents) to give a written undertaking that no copy of a document, or information from a document, obtained by the expert in the examination is to be disclosed or used otherwise than in accordance with directions given to the expert in this Order. (6)I direct the Defendants and the said computer expert to permit the Plaintiff, his legal representative and any computer expert retained by the Plaintiff to be present during the examination. (7)In the event that there is damage to the computer (including but not limited to damage to the hard drive and any loss of or damage to data) caused by or during the examination, I order the Defendants in each of the proceedings before me, being proceedings 2011/301247, 2011/292705 and 2011/ 304114 to indemnify the Plaintiff against any economic loss caused by such loss or damage. (8)The following documents are excluded from the application of order (2) above: (a)An "excluded document" as defined in the Uniform Civil Procedure Rules 2005 (NSW) r21.1 and in particular any document that wholly came into existence after 21 September 2011; and (b)Privileged documents and in particular documents produced for the sole purpose of providing legal advice to the Plaintiff or providing legal instructions to the Plaintiff's solicitors.

SCHEDULE A. All documents evidencing or purporting to evidence the alleged death of Vladimir Safronov (including all translations) including but not limited to death certificates, autopsy reports, photographs and other records of alleged death. B. All documents showing or tending to show the identity of Vladimir Safronov including but not limited to copies of all passports (including but not limited to Australian and Russian passports), citizenship/naturalisation records, driver's and other licences, Medicare cards, credit/debit cards etc. C. Copies of any and all documents pertaining to Vladimir Safronov's journey from Australia to Russia and/or Ukraine in or about October or November 2009, including but not limited to travel itineraries, booking receipts/confirmation, tickets etc, D. Copies of all documents, photographs and communications (written or electronic) passing between Vladimir Safronov and the following parties, and any record of telephone conversations between Vladimir Safronov and the following parties, for the period June 2005 to 21 September 2011: (a)i. The Plaintiff, Sergey Gerasimov; (b)ii. Any and all beneficiaries named in Vladimir Safronov's will (Sergey Gerasimov, Sergey Cherdantsev, Sergey Grigorevski, Elena Chuprakova, Daria Chuprakova, and Oleg Zhirnokfev (also spelled "Jirnoklev"). E. Copies of all documents, photographs and communications (written or electronic) passing between the Plaintiff (Sergey Gerasimov) and the following parties (whether directly or via a third party or third parties), and any record of telephone conversations between the Plaintiff (Sergey Gerasimov) and the following parties, for the period June 2005 to 21 September 2011: (a)Vladimir Safronov; (b)Any and all beneficiaries named in Vladimir Safronov's will (Sergey (c)Gerasimov, Sergey Cherdantsev, Sergey Grigorevski, Elena Chuprakova, Daria Chuprakova, and Oleg Zhirnoklev (also spelled "Jirnoklev"); (d)Ministry of Home Affairs (Ukraine); (e)Ministry of Interior (Ukraine); (f)Ministry of Health (Ukraine); (g)Ministry of Internal Affairs (Ukraine, but not limited to the Kharkiv/Kharkov region); (h)Central Department of Health (Ukraine); (i)Municipal Health Care Institution (Ukraine); (j)Kharkov City Bureau of Forensic Examination (Ukraine); (k)Any Crematorium in Ukraine; (l)Civil Registry Office of the Kharkiv/Kharkov City Department of Justice; (m)Any other Ukrainian government or government body not mentioned above; (n)NSW Department of Births, Deaths and Marriages. F. Copies of all documents showing or tending to show the dates on which each document falling within the above categories above were received by the Plaintiff and from whom the Plaintiff received each of these documents. Note that in the categories for discovery set out above, "documents" means any record of information and includes: (a)Anything on which there is writing; (b)Anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; (c)Anything from which sounds, images or writings can be reproduced with or without the aid of anything else; (d)Any email or electronic communications - including (but not limited to) internet search histories and/or chat services such as Skype, MSN Messenger etc; (e)A map, plan, drawing or photograph; (f)Any part of a document; (g)Any copy, reproduction or duplicate of the document or of any part of the document; and (h)Any part of such a copy, reproduction or duplication (9)Evidence on the proceedings in one application be taken as evidence heard in all three proceedings. (10)The costs of and incidental to these proceedings be costs in the cause. (11)Flagged documents from Exhibit VD 1 to remain on file. (a)I direct that the Defendants in proceedings 2011/301247, 2011/304114 and 2011/292705 not be required to serve on the Plaintiff or produce for inspection the affidavit of Melissa Louise Godfrey dated 9 August 2012 handed up in court in support of the Defendants' application for orders in the nature of the "Markus" discretion. (b)I order that the documents in respect of which the "Markus" privilege is claimed, being Annexures V-DD inclusive of the said Affidavit of Melissa Louise Godfrey and the substantive affidavit be removed from the affidavit and placed in a sealed envelope in the court file and marked "Exhibit VD 1 inspected by the court for the purposes of the Notice of Motion heard on 10 August 2012." (c)I direct that the sealed envelope to which I have referred in 11(b) above be retained on the court file and not opened without leave of a judge. (12)I grant general access to the parties and their legal representatives to the documents produced under subpoena by: (a)Citigroup Pty Limited (b)NSW Registry of Births Deaths and Marriages (c)Department of Immigration and Citizenship (d)Southern Cross Protection Pty Ltd (e)ANZ Banking Group Limited (f)The Commissioner of Police (g)Commonwealth Bank of Australia (h)Telstra Corporation Limited (i)St George Bank (j)Vodaphone Hutchinson Pty Ltd (13)Order that Motions otherwise be dismissed. (14)Matter is adjourned for mention before the List Judge on Thursday, 25 October 2012.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 September 2012